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2013 DIGILAW 888 (PAT)

Purushotam Kumar Singh v. State of Bihar through its Principal Secretary, Human Resources Deptt. , Govt. of Bihar

2013-07-26

MIHIR KUMAR JHA

body2013
Judgment Heard learned counsel for the parties. 2. The prayer of the petitioner in this writ application reads as follows:- "to quash the part of the decision taken on 30.8.2011 in the proceeding of the District Compassionate Appointment Committee, Aurangabad, Bihar, headed by District Magistrate, Aurangabad, Bihar whereby the petitioner's reappointment on the III Grade post from IV Grade post has not being considered by the aforesaid Committee even after order dated 5.7.2011 passed in L.P.A. No. 90 of 2011 by the Hon'ble Court and secondly for a direction to the aforementioned Committee to consider the case of the petitioner for reappointment on the post of III Grade post from the IV Grade post in the light of order dated 22.3.2005 passed in C.W.J.C. no. 3389 of 2004, order dated 23.7.2010 passed in C.W.J.C. No. 3104/2007 by the Hon'ble Court and in the light of an Order dated 10.5.2013 passed in M.J.C. No. 3925/2011 by this Hon'ble Court taking into account the decision taken on 7.6.2005 in meeting of District Compassionate Appointment Committee, Aurangabad." 3. Learned counsel for the petitioner in support of the aforementioned prayer has submitted that when the father of the petitioner had died on 12.1.2001, the petitioner was appointed on a Class-4 post on 25.6.2001 but, then, since the petitioner had a qualification for Class-3 post and there were some more comparable cases alike the petitioners, he had moved the authority for his being appointed afresh on compassionate ground on Class-3 post and when his such effort had failed, he moved this Court wherein after dismissal of the writ application, the Division Bench in the order dated 5.7.2011 in LPA No. 90 of 2011 had directed the authority to consider the grievance of the petitioner for his appointment on Class-3 post. 4. According to the learned counsel for the petitioner, the impugned order passed on 30.8.2011 again rejecting the claim of the petitioner for appointment on the Class-3 post is in total defiance of the observations made by the Division Bench of this Court in the order dated 5.7.2011. 5. In the considered opinion of this Court, the petitioner cannot claim any right to be appointed against a Class-3 post. 5. In the considered opinion of this Court, the petitioner cannot claim any right to be appointed against a Class-3 post. It has to be noted that when the father of the petitioner had died in the month of January, 2001, the respondents on the basis of the available post had immediately appointed the petitioner on compassionate ground by giving him a Class-4 post. The petitioner without demur or protest had accepted such appointment and in fact had raised the issue only by filing a writ application in the year 2008 i.e. after seven years of his continuance on a Class-4 post. That writ application CWJC No. 1780 of 2008 having been dismissed and when the matter was taken by the petitioner to the Division Bench in LPA No. 90 of 2011, all that this Court had held was as follows:- "The appellants have been appointed on Class-IV posts on the ground of compassion. Their grievance is that the writ court has directed for considering the case of writ petitioner no. 2 for appointment on a Class-III post, if available, as per law only because he had not joined Class-IV post offered to him, whereas it has rejected the case of appellants because they had joined Class-IV post. Ordinarily, compassionate appointment cannot be claimed as a matter of right and once appointed on compassion, all claim for such appointment looses its life. However, in the peculiar facts of present case when the authorities have been directed to consider the case of respondent no. 5/writ petitioner no. 2 only because he had not joined the Class-IV post offered to him, in the interest of maintaining equality, we grant liberty to the State to consider the case of appellants also together with that of respondent no. 5 for appointment to Class-III posts in case they are found eligible for the same and posts are existing. Such consideration of claims of the appellants must reach finality expeditiously, preferably within a period of three months from today." 6. It is in this backdrop that the respondent authority had passed the impugned order not only after considering the scheme of compassionate appointment prevalent in the Government of Bihar vide circular dated 5.10.1991 but also that the issue relating to appointment of the petitioner on Class-3 post being continuing for a period of more than ten years, would not be reopened. The Collector of Aurangabad district considering the case of the petitioner had held as follows:- (iii) Jh iq:”kksre dqekj flag firk Loå of’k”V ukjk;.k flag] f’k{kd] jktdh;d`r mPp fo|ky;] okj] vkSjaxkckn ds vkosnu i= ij fopkj fd;k x;kA Jh iq:”kksre dqekj flag dks fnukad 25-6-2001 dks lEiUu ftyk vuqdEik lfefr] vkSjaxkckn dh cSBd esa prqFkZ Js.kh ds in ij fu;qDr gksdj vuqeaMy f’k{kk inkf/kdkjh ds dk;kZy; esa dk;Zjr gSA budk vkosnu vuqdEik ds vk/kkj ij prqFkZ oxZ ls r`rh; oxZ ds in ij fu;qfDr dh vuq’kalk ds fy, gSA ^dkfeZd ,oa iz’kklfud lq/kkj foHkkx] fcgkj] iVuk ds i=kad 13293 fnukad 5-10-91 dh dafMdk 9 ^d* esa Li”V funsZ’k gS fd ^^vuqdEik ds vk/kkj ij fdlh in ij fu;qDr gksus ij iqu% mls vuqdEik dk nksckjk ykHk nsrs gq, mldks izksUufr vFkok laoxZ ifjorZu ugha fd;k tk ldsxkA** lkFk gh lkekU; iz’kklu foHkkx] fcgkj] iVuk ds i=kad 2188 fnukad 4-6-10 }kjk Hkh funsZf’kr fd;k x;k gS fd lewg ^?k* ls lewg ^x* esa izksUufr dk lEizfr dk lEizfr dksbZ fu;e@vuqns’k ugha gSA fopkjksijkUr loZ lEefr ls fu.kZ; fy;k x;k fd Jh flag dks prqFkZ oxZ ls r`rh; oxZ ds in ij fu;qfDr dh vuq’kalk fu;ekuqdwy ugha gSA** 7. Having thus examined the impugned order passed by the Collector of Aurangabad district, this Court has no iota of doubt that full consideration has been given by the Collector of the district. It has to be noted that initially when the petitioner's appointment was under consideration in the year 2001 and in fact he got appointed on compassionate ground in less than six months of the recommendation of the District Compassionate Appointment Committee for the appointment on compassionate ground for a Class-4 post. Thus, when the petitioner was given Class-4 post, he had accepted such post without any protest and, therefore, in the light of the policy decision of the Government dated 5.10.1991 which itself lays down that once a person is appointed on compassionate ground on any post, he cannot be allowed to raise any further claim for higher post. It is well settled that the appointment on compassionate ground is a matter of policy and if the policy itself lays down for no further consideration after being given one post, the same cannot be claimed by the person already appointed and continuing in service as a matter of right. 8. It is well settled that the appointment on compassionate ground is a matter of policy and if the policy itself lays down for no further consideration after being given one post, the same cannot be claimed by the person already appointed and continuing in service as a matter of right. 8. In fact, this very aspect has also been settled by the Apex Court in the case of State of Rajasthan vs. Umrao Singh reported in (1994)6 SCC 560 wherein it was held that there is no such concept of "endless compassion" and the claim of compassionate appointment gets extinguished once one of the available post is offered by the employee and is accepted by the employee. 9. It has to be kept in mind that the decision taken in the year 2001 by the District Compassionate Appointment Committee for appointment of the petitioner on a Class-4 post could not have been reopened after ten years because the petitioner was not competing on merit. It was the case of the availability of the post which was offered at that point of time to the petitioner and which he had also happily accepted. Thus, after a period of more than twelve years of continuation of the petitioner on Class-4 post, this Court is not inclined to hold that the initial appointment of the petitioner on compassionate ground in the year 2001 was made on any irrelevant consideration. The example cited by the petitioner of other persons are not comparable and in any event, each case of compassionate appointment arising at a particular point of time cannot be reopened only because the policy subsequently had been re-defined or changed. The case of the petitioner will have to be considered as on 12.1.2001 when the father had died and on that day, his appointment on Class-4 post cannot be faulted either on fact or in law. 10. That being so, this application is wholly misconceived and is, accordingly, dismissed.